B.K. Chaturvedi, J.
1. This is defendants' second appeal from the decree passed by the Additional District Judge, Sagar, on 20-9-1956, affirming the decree of 25-1-1956 by the Civil Judge (Class II), Khurai, granting a perpetual injunction restraining the defendants from running a flour-mill close to the house of the plaintiff-respondent in Manorama Ward of Bina town.
2. Plaintiff-respondent has his house at a distance of 8 or 9 feet from the flour-mill. The allegation of the plaintiff was that the working of the flour-mill caused great trouble to the occupants of the house and the smoke, vibrations and the noise of the mill interfered with their physical comforts. Both the Courts below have come to the conclusion that the working of the defendants flour-mill in that locality makes such a great noise generally from 2 P.M. to 9 P.M. and some-days from 8 A.M. to 10 P.M. (with a short break) that during that time it is difficult for the occupants of the plaintiff's house to hear their own conversation, and undoubtedly it interferes with their physical comforts. The Courts, therefore, granted the injunction solely on the basis of abnormal or unreasonable noise produced by the flour-mill.
3. Shri K. B. Sinha, learned Counsel for the appellants, at first challenged the finding. But I find that the plaintiffs evidence is fully corroborated by a Railway Overseer, three members of the Bina Municipal Committee, by the Secretary of the Municipal Committee and two other independent witnesses. I am, therefore, satisfied that there is sufficient and reliable evidence to support this conclusion. Shri Sinha, therefore, tried to convince me that noise, however great, can never amount to actionable nuisance and that it is the locality that must be taken into consideration in such cases. The learned Counsel also contended that the appellants have taken license from the Municipal Committee and the mill is being worked according to rules framed by the Municipal Committee.
4. During the course of arguments I found that there was some confusion between a public nuisance and a private one. I think it will be better first to remove any misunderstanding on this point. It has been stated in 'Winfield on Tort,' Sixth Edition, (Chapter 18, page 536) that 'nuisance' is incapable of exact definition, but for the purposes of the law of tort it may be described as unlawful interference with a person's use or enjoyment of land, or of some right over, or in connection with it. In 'Clerk and Lindsell on Torts,' Eleventh Edition, (Chapter 17, page 560) it is observed that 'nuisance' is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement, or other, right used or enjoyed in connection with land, when, it is a private nuisance. A public nuisance is always a criminal offence; the same cannot be said of a private nuisance.
5. It follows as a corollary from it that the acts constituting public nuisance are all of them unlawful acts; those which constitute private nuisances are not necessarily or usually unlawful. A private nuisance usually is caused by a person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbour in one of the throe ways :
(1) by causing an encroachment on his neighbour's land, when it closely resembles trespass,
(2) causing physical damage to his neighbour's land or buildings or works or vegetation upon it, or
(3) unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land. It is also a nuisance to interfere with some easement Or quasi-easement used or enjoyed with his neighbour's land.
(See pages 561-563 of Clerk and Lindsell on Torts; (1954) Eleventh Edition).
6. It will be manifest that making unreasonable noises comes in the third category and to be actionable it must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man. In cases of personal discomfort, the standard laid down is the effect on a person of ordinary, not peculiar, sensibilities. The counsel for the appellants rightly urged that in considering the standard of comfort the character of the neighbourhood has to be taken into consideration. The law or private nuisance, in this sense, is undoubtedly clastic, and it was in this connection that Lord Halsbury made the following observations in Colls v. Home and Colonial Stores, Ltd., (1904) AC 179 at p. 185 :
'A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, andthe question is in each case whether it amounts to & nuisance which will give a right of action.'
7. In Sturges v. Bridgman, (1879) 11 Ch, D. .852 at p. 865, Thesiger, L, J., expressed his views thus :
'.....whether any tiling is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bormondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and Juries would be justified in finding, and may be trusted to find, that the trade-or manufacture so carried on in that locality is not a private or actionable wrong.'
8. These remarks have been so often quoted by Jurists and Judges that their importance cannot be minimised. It is aptly observed at p. 573 of 'Winfield on Tort' (Sixth Edition, 1954) that the oft-quoted dictum that 'what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey' puts the matter concisely and needs only the addition that Belgrave Square may in course of time fall to the level of Bermondsey, 'for that has happened with many other aristocratic (martens of London.'
9. All this, however, only means that an arbitrary standard cannot be set up which is applicable to all localities. There is a local standard applicable in each particular district, but, though the local standard may be higher in some districts than in others, the question in each case ultimately reduces itself to the fact of nuisance or no nuisance, having regard to all the surrounding circumstances. But this does not, however, mean that a person living in a district specially devoted to a particular trade cannot complain of any nuisance by noise caused by the carrying on of any branch of that trade without carelessness and in a reasonable manner. In Rushmer v. Polsute and Alfieri Ltd., (1906) 1 Ch. 234, in a neighbourhood devoted to printing, a printing office was established next door to the plaintiff's residence which rendered sleep impossible. It was contended that a person living in that locality could not complain of such a noise as the neighbourhood carried on, and was devoted to printing work. This argument was repelled by the Court of Appeal, and in repelling it Cozens-Hardy, L. J., especially observed at page 250 :
'I cannot assent to this argument. A resident in such a neighbourhood must put up with a certain amount of noise. .. . . .. .. . . .. But whatever the standard of comfort in a particular district may be, I think the addition of a fresh noise-caused by the defendant's works may be so substantial as to create a legal nuisance. It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would foe no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked. In short, if a substantial addition is found as a fact in any particular case, it is no answer to say that the neighbour-hood is noisy, and that the defendant's machinery is of first-class character.'
10. When the case went in appeal, these observations were approved by the House of Lords.as laying down the correct law (Polsue and Alfieri, Limited v. Rushmer, 1907 AC 121).
11. The observations quoted above made the law quite clear on the point argued in the instant case. Noise alone has, under circumstances, been held to amount to a nuisance, as in the bells of a Roman Catholic Chapel, Saltau v. De Held, (1851) 21 LJ Ch. 153 at p. 159; or where the nuisance complained of arose from the noise caused by horses in an adjoining stable : Ball v. Ray, (1873) 8 Ch. App 467 and Broder v. Saillard, (1876) 2 Ch. D. 692 or, where the noise of the music and shouting arising from the performances of a circus erected near the plaintiff's house lasting from half-past seven till half-past ten in the evening every day was so loud that it could be distinctly heard all over the plaintiff's house and above the conversation, though the windows and the shutters were closed: Inchbald v. Robinson, Inchbald v. Barrington, (1869) 4 Ch. App 388; or where the noise arising from a poultry farm about 100 yards from the plaintiff's house where large number of cockerels were kept was held to be actionable : (Leeman v. Montagu, 1936-2 All ER 1677. Even the constant noise made by the lift and the banging of collapsible metal doovs has been held to be a nuisance in Newman v. Real Estate Debenture Corporation Ltd., 1940-1 All ER 131, where the following observations of Atkinson, J., at pp. 145-146 make the facts so far as the question of noise was concerned quite clear :
'As to the complaint of noise, I have no doubt whatever that that did amount to an actionable nuisance. There were two main sources of noise. First, the lift shaft, as I have said, was not outside the flats, but came up immediately under the end of the plaintiff's bedroom. Of course, it did not affect him while he was in bed, because the business stopped at 6 P.M., but during the day it was constantly at work, and these collapsible metal doors, which of course had to open and shut every time the lift was used, and the movement of the lift itself coming up under the floor of the flat, I am satisfied were a source of noise. Then there was the banging of doors. There was the shop door, there was a door on every floor, and apparently the worst door of all was this fireproof door halfway down the stairs to the basement. They were fitted with springs, but not springs which controlled or checked them. There were two factors which helped noise to reach the plaintiff's flat. There was the lift shaft, which formed tube which ran up through the whole building, and the borrowed lights running up the sloping part of the stairs on each floor let the noise from each side of the flats on to the staircase. I find that the continual banging of the doors was an inconvenience materially interfering with the Ordinary physical comfort of human existence according to plain and sober and simple notions obtaining among English people. I use that language because it is in the leading case of Walter v. Selfe, (1851) 4 De G and Sm. 315 at p. 322 and was quoted and applied by Luxmoore, J., in Vanderpant v. Mayfair Hotel Co. Ltd., 1930-1 Ch. 138 at p. 165.'
12. The principles enunciated in some of the earliest English cases have been followed by the High Courts in India. The facts of three of the important Indian cases may, in my opinion, be use-fully referred to here. The earliest important case is of 1883 and has been reported in Land Mortgage Bank of India v. Ahmedbhoy Habibbhoy, ILR 8 Bom 35. The plaintiffs' buildings at Colaba known as 'Grant Buildings' were situated very near a Hydraulic Press Company, which was converted -into a spinning and weaving mill. The question waswhether the noise made by the working of the machines, machinery and gear by the mill on the defendants' premises interfered with the comforts of the occupants of certain divisions of the two blocks of the plaintiffs' buildings, Sargent, C. J., delivering the judgment in the original suit observed about the occupants of those blocks of the buildings :
'Fastidious or highly sensitive they probably are not, as a rule, but they have a standard of comfort in which I cannot doubt that peace and quiet and freedom from noise must be very important factors; and the noise of the mill, as heard in the above divisions, I cannot but think is one which must seriously interfere with that standard of comfort. It may be that the noise in front from the traffic is a serious nuisance to some persons, even more so than the noise of the mill, but it is perfectly distinct in cause, character and duration from the latter; and it can scarcely be contended because there is a very objectionable noise in front of Grant Buildings which lasts for some five or six months and which the plaintiffs presumably cannot get rid of, a perfectly distinct and objectionable noise at the back, which lasts all the year round, cannot be a nuisance, and ought not to be relieved against.
Upon the whole I am of opinion that the noise caused by the working of the mill has always constituted and still constitutes a nuisance to the occupants of divisions 2, 3 and 4.'
The Division Bench which heard the appeal also came to the conclusion that the smoke, cotton fluff and noise proceeding from the mill caused serious inconvenience to the inhabitants of division nos. 2, 3 and 4 of the eastern block of the Grant Buildings.
13 Then, in Sadasiva v. Rangappa, AIR 1919 Mad 1185, the defendant, oil monger by caste, bad set up an oil mill of the country pattern in the yard of his house, next door to the plaintiff's house. The noise of the mill caused by the turning of the machine drawn by the bullocks could be heard at a distance even of two furlongs. It was found that the unbearable noise prevented the plaintiff from attending to his work. This was held to be an actionable nuisance.
14. The third case is reported in Shaikh Is-mail v. Venkatanarasimhulu, AIR 1936 Mad 905. The facts were that a portion of his house was set apart by the defendant for what he considered a charitable purpose, namely, to allow anybody who wanted to use it temporarily for performing marriage ceremonies, jujas, etc., free of rent, and loud noise was produced there during the ceremonies by loud and discordant instruments like tom toms and cymbals and so on and the noise continued to be made long after the hour when people go to sleep. It was held that the noise amounted to an actionable nuisance and the plaintiff was entitled to an injunction restraining the defendant from making the loud noise during hours of sleep. This case was, however, decided on the footing that sleep is a necessity of mankind generally, and repeated disturbance of natural sleep must necessarily cause a great deal of discomfort and even suffering.
15. the principles deduicible from the cases discussed and referred to above may be summarized thus:--
(1) Constant noise, if abnormal or unusual, can be an actionable nuisance, if it interferes with one's physical comforts.
(2) The test of a nuisance causing personal, discomfort is the actual local standard of comfort, and not an ideal or absolute standard.
(3) Generally, unusual or abnormal noise on defendant's premises which disturbs sleep of the occupants of the plaintiff's house during night, or which is so loud during day time that due to it one cannot hear ordinary conversation in the plaintiff's house, or which cannot allow the occupants of the plaintiff's house to carry on their ordinary work is deemed to be a noise which interferes with one's physical comforts.
(4) Even in a noisy locality, if there is substantial addition to the noise by introduction of some machine, instrument, or performances at defendant's premises, which materially affects the physical comforts of the occupants of the plaintiff's house, then also the noise will amount to actionable nuisance.
(5) If the nose amounts to an actionable nuisance, the defence that the defendant is making a reasonable use of his own property will, be ineffectual. No use of one's property is reasonable if it causes substantial discomfort to other persons. 'If a man creates a nuisance'' said Kckewich J. in Attorney-General v. Cole & Son, 1901-1 Ch. 205 at p. 207. 'He cannot say that he is acting reasonably. The two things are self-contradictory.'
(6) If the defendant is found to be carrying on his business so as to cause a nuisance to his neighbours, he is not acting reasonably as regards thorn, and may be restrained by injunction, although he may be conducting his business in a proper manner and according to rules framed in this behalf either by the Municipality or by the Government. The latter defence can be effective in a case of public nuisance, but not in that of a private nuisance.
(7) If an operation on the defendant's premises cannot by any care and skill be prevented from causing a private nuisance to the neighbours, it cannot be undertaken at all, except with the consent of those injured by it.
(8) The right to commit a private nuisance can, in certain circumstances, be acquired either by prescription or by the authority of a statute.
16. Applying these principles to the facts of the instant case it will be seen that the defendant erected a flour-mill only at a distance of 8 or 9 feet from the house of the respondent, did not pay any attention to his complaint which he made at the very inception of the working of the plaintiff's (defendant'?), flour-mill and did not try to introduce silencer in the engine or build the walls round his mill so high that the noise reaching the house of the plaintiff would have been reduced to the minimum or would have been only an occasional inconvenience to him. The abnormal noise produced by the flour-mill materially impaired the physical comforts of the occupants of the house of the respondent and as such amounted to actionable nuisance. The evidence tendered by the appellants has been disbelieved by the Courts below: and so far as the question of credibility of the witnesses is concerned, this Court is not in a position to interfere. The only defence taken by the appellants and which, on their behalf, was messed here is that the Municipal Committee had given a license for starting the flour-mill and the license had been renewed. This, in my opinion, is 'not an effectual defence in such cases. The Municipality is, after all, a creature of the statute. It has no power to confer rights upon anybody to commit private' nuisance. In this view of the matter, it is clear that this appeal must fail.
17. Shri K. B. Sinha, learned counsel for the appellants, however, places reliance upon a 1924 decision reported in Biharilal v. James Maclean,ILR 46 All. 297: (AIR 1924 All. 392) for the proposition that the findings of the two Courts below can be reversed on the basis that noise from the flour-mill can never become private nuisance. In my opinion, on facts, that case is distinguishable. The plaintiff in that case owned a house in Bezar Katra Ahmedganj in Farrukhabad city. It was occupied by a clergyman and his wife who practised as a lady doctor. The defendant's flour-mill worked by an oil engine was behind this house. The lower appellate Court had made no attempt to discuss the evidence at all, but had given a finding that the noise and regular throb of the engine so close to the house of the plaintiffs was a 'distinct and pervading nuisance' to the occupants of the house. The trial Court had referred to the evidence only of one of the plaintiffs and held on the basis of that evidence that the soot arising from the chimney would fall upon the articles kept in the house of the plaintiffs, there would be bad smell produced from the kerosene oil and noise produced from the engine would cause substantial inconvenience to the tenants occupying that house and especially 'to the lady doctor who had to use a stethoscope to examine the hearts and the lungs of the patients coming to her for treatment'. There was no finding that the disturbance was so substantial as to render the house practically uninhabitabe for ordinary people without serious discomfort. The High Court, therefore, thought that a case of substantial interference with the physical comfort of the residents of the house was not made out, It was also pointed out that a discomfort to be actionable must be substantial not only to persons with dainty, or elegant modes or habits of living, but to any person occupying the premises of the plaintiff, irrespective of his position in life, age, or state of health. It was also found by the High Court in that case that another flour-mill worked by a gas engine was already there at a distance of 20 to 25 paces and nobody had taken objection on the score of discomfort. Several residents of that locality and a Sub-Assistant Surgeon produced on behalf of the defendant had deposed that the noise produced by the oil engine was of an ordinary character and no discomfort was suffered by the residents of the locality. After taking all these facts into consideration, the High Court allowed the appeal and dismissed the suit. As already stated above, the facts of the instant case are altogether different. There is no evidence in the instant case of any other flour-mill being in the vicinity of the plaintiffs house, or of the existence of houses within a distance of 8 or 9 feet of other four or five flour-mills working in the town of Bina-Itwa and of absence of complaints of physical discomfort on account of any abnormal noise by the occupants of these cases. The Allahabad cases in my opinion, can also be no authority for the proposition that noise from a flour-mill can never constitute actionable nuisance.
18. Shri K. B. Sinha, lastly, contended that an injunction is a very harsh penalty to his clients. But in such cases, what is the alternative? The inconvenience, annoyance, and substantial physical discomfort cannot be adequately estimated in money. The cases in which damages can be substituted for an injunction sought to abate a private nuisance of this typo must be exceedingly rare. Moreover, the continuance of the nuisance gives rise to a new cause of action from, day to dav and so a judgment for damages cannot afford the plaintiff adequate relief. It has been established by a current of the highest authorities that what makes life lose comfort and annoyance is a proper subject for injunction. A man is entitled to the comfort-able enjoyment of his dwelling house and to carry on ordinary conversation in that house without substantial interruption from any abnormal noise. If his neighbour makes such a noise as to interfere with the ordinary use and enjoyment of his dwelling house so as to cause serious disturbance to the ordinary conversation amongst the occupiers of the dwelling house, the owner or the occupier is entitled to be protected from it by means of an injunction. In my opinion, therefore, the judgments of the Courts below have rightly gone in favour of granting the required injunction.
19. I dismiss this appeal with costs.